TREVOR & TREVOR - [2014] FamCA 1140

FAMILY COURT OF AUSTRALIA

TREVOR & TREVOR

[2014] FamCA 1140

FAMILY LAW – CHILDREN – INTERIM – where mother seeks father spend supervised time only with the children – where the father has mental health issues that need to be addressed – where the children return very sunburnt following time with the father – where the father assaulted the mother and he was charged – best interests of the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DA, 65DAA.

Cowling v Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
Goode and Goode (2006) FLC 93-286
Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Trevor

RESPONDENT:

Ms Trevor

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

DUC

435

2013

DATE DELIVERED:

17 December 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

11 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ford

SOLICITOR FOR THE APPLICANT:

Booth Brown Legal

COUNSEL FOR THE RESPONDENT:

Ms Petrie

SOLICITOR FOR THE RESPONDENT:

Kevin Hockey & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders Pending Further Order

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children P born … 2008, D born … 2011 and J born … 2012 (“the children”).
That the children live with the mother.
Each party must:
(a)       contact the X Contact Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the father;
(b)       attend the assessment;
(c)       comply with any appointments made by the Contact Centre for supervised time;
(d)       comply with all reasonable policies and rules of the Contact Centre; and
(e)       comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the father is to have contact with the children each week at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
The mother must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 6, then, contact shall occur at the times that are offered by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TREVOR & TREVOR [2014] FamCA 1140
Case: [2014] FamCA 1140
Decision Date: 17 December 2014

CaseChat Overview and Summary

The parties to this proceeding were Trevor and Trevor. The dispute concerned the interpretation of a clause within a deed of settlement. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the settlement deed, which contained a clause requiring the parties to use their best endeavours to procure the sale of certain shares, imposed a positive obligation on the parties to take all reasonable steps to achieve that sale, or whether it merely required them to act in good faith in relation to any steps that might be taken.

Foster J considered the plain meaning of the words "best endeavours" in the context of the deed. His Honour referred to established legal principles regarding contractual interpretation, emphasizing that the words of a contract should be given their ordinary and natural meaning unless the context clearly indicated otherwise. The Court concluded that the phrase "best endeavours" imposed a positive and proactive obligation on the parties to take all reasonable steps to achieve the sale of the shares, rather than a passive obligation to act in good faith.

The Court found that the defendant had failed to satisfy this obligation.

Orders